Adderall cases across state being dismissed because of legislative mix-up

Unbeknownst to district attorneys across the state, the Texas Legislature approved a bill last year that inadvertently decriminalized possession of Adderall and, it appears, other prescription amphetamines as well.

Unbeknownst to district attorneys across the state, the Texas...

A Katy teenager, splitting his time between classes at community college and working at a sandwich shop, was burning the candle at both ends when he was arrested for illegal possession of prescription Adderall.

The 19-year-old student agreed to spend two years in prison through a plea deal, but lost his job and was kicked out of school.

Unbeknownst to district attorneys across the state, the Texas Legislature approved a bill last year that inadvertently decriminalized possession of Adderall and, it appears, other prescription amphetamines as well.

Now the "Adderal cases" – as they are being called around the Harris County criminal courthouse – are being dismissed as jurisdictions across Texas work quietly to reverse convictions and get defendants out of jail.

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"Anybody who has been charged with this offense since Sept. 1, 2015 onward should have their case looked at closely and dismissed," said Warren Diepraam, a prosecutor in Waller County. "Across Texas, that could be thousands of cases."

The Katy teen – after spending eight months behind bars at a state prison in South Texas – has been released. More than 50 other cases in Harris County have also been identified for review.

"It seems to me that he could have some sort of recourse, maybe a civil suit, against the state of Texas for imposing a sentence where his liberty was restricted for that amount of time," said attorney Tristan LeGrande, who spoke on condition that his client not be identified.

"He was working and in school, and I think a lot of college students do that," he said. "They end up self-medicating. And for awhile, one pill was a felony."

The loophole in the Adderall law originated in 2014 when legislators worked to increase penalties for synthetic marijuana, sometimes called Kush or Spice.

Because manufacturers of that illicit street drug were skirting the law by changing chemical formulas every few months, the statute was changed to include dozens of chemicals and combinations of those chemicals. Aided by forensic chemists, lawmakers outlawed wide swaths of drug compounds.

Because it was so broad, lawmakers wanted to write an exception to make sure that people with valid prescriptions for drugs like Adderall were not prosecuted. By drafting language exempting any class of drugs "approved by the Federal Drug Administration," they inartfully wrote an exception into the law that moved illegal possession of Adderall and it's lesser-known analogs, including Vyvanse, from a felony charge to a misdemeanor.

It was so different from the intent of the law, officials said, that no one realized what they had done until almost a year later. In late July, the Texas District and County Attorneys Association sent out a bulletin to members explaining what happened.

"It was an untended consequence to some of the changes to a complicated statute," said TDCAA staff attorney Shannon Edmonds. "And I think that's proven by the fact that it took almost a year to snap to the effect of the language that was passed. It wasn't something that anybody caught during the legislative process."

Since then, the organization sent notice to prosecutors across Texas encouraging them to change their charging protocols and review past cases.

Hopefully, Edmonds said, a new law will pass during the next legislative session to return illegal possession of the drug to a felony. But in the meantime, no one, including the author of the bill, knows exactly what other drugs may actually fall under the exception.

"At this point, I don't know of any others, but I'm not saying there's not," said state Sen. Joan Huffman, R-Houston.

Because the exception applies most clearly to Adderall, however, she expressed doubts that there are multitudes of cases to be resolved.

"I'm sure that there could be some cases out there, but I would be shocked if there were thousands," she said.

Officials, including Diepraam, agreed there may be a small number of Adderall cases but said prosecutors will have to review an expansive list of drugs, including Ecstasy, LSD and others, to see how they are classified by the FDA.

"The problem is, it's a blanket exception," Diepraam said. "The number of Adderall cases may be extremely low, but other controlled substances that may fall under this prohibition from prosecution could be substantially more. It could be huge."

Adderall, a stimulant prescribed for ADHD, has gotten a reputation for abuse among college students and young professionals who want to stay up all night to study or party. The illegal possession of it had long been a felony in Texas.

After word went out across the state, the Harris County District Attorney's Office found more than 50 pending cases and 18 cases that had been disposed of, including six people who were in custody, either in jail or in lockdown in drug treatment.

The snafu is the third time in recent months that Harris County criminal cases have come under scrutiny.

For the past month, the district attorney's office has been dismissing cases because a deputy in the Precinct Four constable's office mistakenly destroyed evidence in hundreds of cases possibly dating back to 2007.

And the district attorney's office has also given notice to the entire defense bar in Harris County that a lab supervisor who testified about intoxication in scores of cases incorrectly stated her qualifications. It is unclear how many, if any, cases will be affected as that situation unfolds.

The Adderall cases were shuffled to the Harris County Public Defender's Office, where attorney Nicolas Hughes started trying to contact defendants.

"There's a handful of people who were convicted and some were incarcerated and some were put on (probation)," he said recently. "We're just scrambling to find them all. We're trying to get them out of jail."

Hughes, who became the main appellate attorney for all the Harris County cases, began filing the paperwork for relief and has been working with Assistant District Attorney Inger Chandler.

Chandler, the chief of the conviction review section of the district attorney's office, said the jaw-dropping notice that the office had erroneously been filing felony cases on what would have been misdemeanors came out the blue. No one - not judges, prosecutors or defense lawyers - caught the error.

"I think we're all scratching our heads on how all of us missed it," she said.

After learning of the problem, it was Chandler's job to find the cases. Instead of looking through thousands of files at the DA's office to see which ones may have ADHD medications, she contacted the labs to see which cases fit the chemical profile since last September. The three area labs were able to pull together lists of cases that Chandler cross-referenced with criminal filings.

She then sent out letters to defendants and their lawyers. To file the appropriate appeal to get the cases dismissed, the public defender's office has to get approval from the client, which takes time and paperwork.

The dismissals have started to work their through the Court of Criminal Appeals, which cleared the way Wednesday for at least one Harris County case to be dropped.

"I was really proud of how quickly we moved through it," Chandler said.

In Galveston County, prosecutor Kevin Petroff said the district attorney's office is wading through about 120 convictions to see how many cases may be affected.

Brazoria County District Attorney Jeri Yenne said her office dismissed a handful of pending cases and pulled about three cases that needed to be reviewed, so she sent defense lawyers a letter about the situation.h

Lawmakers and law enforcement officials say they plan to change the law back to the stiffer penalty for Adderall possession in the next legislative session, which begins in January.

If successful, the state would have seen a two-year period in which Adderall and other prescription amphetamine drugs were misdemeanors instead of felonies, throwing a wrench in all of the arrests since the previous law went into effect Sept. 1, 2015.

For now, however, lawyers are working to get the mess cleaned up.

Joseph Gutheinz, a Friendswood attorney who has been hired by several people who received letters from Harris and Brazoria counties, is trying to get the word out.

Statewide, he said, there could be dozens of overturned convictions, which could erase felony records for some offenders.

"I think there are going to be more," he said, about the possibility of more drugs falling under the exception. "This is going to change lives."